Taylor v Hunt, 2013 WL 620934 (E.D.Tex.) [Canada] [Habitual Residence] [Grave Risk of Harm] [Guardian Ad Litem] [Guardian Fees] [Petition Granted]

 In Taylor v Hunt, 2013 WL 620934 (E.D.Tex.) on August 24, 2012, Petitioner Akele Mae Taylor filed an action seeking the return of her son, a minor ("KH") to Canada.

The Magistrate found that the Petition should be granted. KH was born in Regina, Saskatchewan, Canada on February 15, 2008. Petitioner and Respondent were married on May 29, 2008 in Regina, Saskatchewan, Canada and bought a house together in Regina, Saskatchewan, Canada. According to Petitioner, from 2004 until their separation in 2009, Petitioner and Respondent lived together and maintained a home in common in Canada. Petitioner alleged that KH lived with them together in Canada until 2009 and with her in Canada after the separation. In 2010, Respondent moved to Texas. Petitioner alleged that she brought KH from Canada to Texas to visit his father on December 20, 2011. According to Petitioner, she and Respondent agreed that KH would only remain in Texas for a month and that KH would be surrendered to her in January 2012. Apparently, Respondent subsequently requested more time to keep his son and Petitioner agreed. Petitioner claims that after visiting her son in Texas for his birthday in February 2012, she agreed to let him stay an additional month with his father in Texas. Petitioner alleged that since March 2012 she repeatedly requested that KH's return be arranged and had been told that KH "isn't ready to go back." Petitioner claimed that she arrived in Texas on July 21, 2012 to pick up KH and take him back to Canada but that he was not returned to her.

On August 8, 2012, Petitioner commenced proceedings in Canada for custody and divorce. Respondent commenced proceedings in Texas state court, seeking divorce and custody of his child.

The Court found that Petitioner sustained her burden in showing that KH was a habitual resident Canada at the time of retention. Until his trip to Texas, KH had lived in Canada consistently. He was born in Canada and was a Canadian citizen. And, although it appeared he was taken care of by various individuals for extended periods of time in Canada while his mother worked, the Court found he had a settled purpose there. As to Respondent's claim that Canada can no longer be deemed his place of habitual residence because he and Petitioner agreed that KH would move to Texas, the Court did not find such shared parental intent. Petitioner consistently testified that it the December 2011 trip to Texas was intended as a visit.

Petitioner also testified that she always anticipated that KH would return to Canada after having spent sufficient time with his father. Petitioner further testified that she sent KH to Texas with a single suitcase containing "probably about three sweaters, two pair of shoes, seven pair of pants, ten t-shirts, a couple of his costumes that he likes to wear, and two or three pair of pajamas,"enough clothing for a visit but not all of his clothes. Respondent stated that "[t]here was never a conversation about the length of time [KH] was going to be here [in Texas]" but stated that it had always been Petitioner's and Respondent's plan to move their family to Texas. Upon further examination by the Court as to the reason for KH's trip to Texas, he stated "there was never a conversation or a matter of him visiting. There was a matter of when she would be coming down here herself."On cross-examination, Respondent could not testify as to any express and overt agreement as to the purpose of the December 2011 trip. Despite extensive questioning from the Court as to the specific conversation or conversations between Petitioner and Respondent regarding KH's December 2011 trip to Texas, Respondent was not able to testify about any specific conversation, maintaining that a move to Texas had always been the family's plan. The fact that the parties may have once agreed to move to Texas as a family-which did seem to be the case here-or that Petitioner referenced her desire to become a U.S. citizen and move to Texas in a July 2012 email (after the retention of KH) was not enough to determine the parents' shared intent at the time of removal and retention for purposes of the Court's determination.

The Court found Petitioner had shown by a preponderance of the evidence that KH's initial move from Canada "was clearly intended to be for a specific, limited duration." Id. at 311.While the Court finds unequivocally that Respondent had "private reservations or intentions" that KH's December 2011 trip to Texas was to be permanent, this is not enough. Because there is insufficient evidence to find that both parents intended for KH to abandon Canada and because no objective facts point unequivocally to the intention for KH to move to Texas, Canada remains KH's habitual residence. Given the facts of this case, the holding in Abbott, and the provisions of the Alberta Family Law Act cited by Petitioner, the Court found that Petitioner had shown by a preponderance of evidence her custodial rights to KH under Canadian law, and that she had shown that she was exercising those custodial rights at the time of retention. Therefore, Petitioner having shown all three elements by a preponderance of the evidence, the Court found that KH has been wrongfully retained in Texas.

The Court found that Respondent failed to establish that there is a grave risk that KH's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Petitioner testified that she worked as an escort and exotic dancer and that she was once arrested for prostitution. Petitioner and Respondent both testified that she would leave KH with other adults, including Respondent, for extended periods of time in order to work as a dancer; however, the suitability of those individuals (other than Respondent) as caretakers was highly disputed and Respondent could not identify any of the "dangerous people" he believed KH was left with. There were also allegations that Petitioner's former boyfriend abused her, and that members of her biological family are "not good people." None of the allegations made rose to the level of what has been deemed to constitute grave risk under the Hague Convention.

The Court-appointed ad litem testified that, after interviewing KH, Petitioner, Respondent, and several family members, she could identify no factors or circumstances that would rise to the level of grave risk. Because of the assertion of the grave risk exception (an exception which Respondent was not able to substantiate at all during the hearing before the Court) and the age of the child the Court stated that it appointed aguardian ad litem in this matter. The Court previously ordered that the fees of the ad litem would be taxed as costs. At the hearing held on November 29, 2012, the parties stipulated that the fees of the ad litem were reasonable and necessary. Therefore, those fees were to be taxed as costs and be payable directly to the guardian ad litem within 30 days of the entry of final judgment.